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'Extraordinary' law leaves DUI sentencing debate wide open
August 22, 2010
By Denise Crosby
​Column: For days after the verdict was read, defense attorney Kathleen Colton was emotionally drained.

A few judges even expressed surprise when she showed up in their courtrooms after a jury found Sandra Vasquez guilty of reckless homicide in the deaths of five Oswego teens. As exhausted as she was, "I had clients to defend," she said.

Now Colton is gearing up for yet another emotional battle, when she attempts to convince Judge Clint Hull on Friday that Vasquez, who could get up to 28 years in prison, should receive probation instead -- due to "extraordinary circumstances."

But first, at the pre-sentencing hearing the day before, Colton will challenge the law's vague definition of extraordinary circumstances. Because it's a law with no guidelines, "I can't argue it," she argues.

Is she supposed to talk about Vasquez's life -- that she was a young mom who worked with Alzheimer's patients and had never been in trouble before the crash? Or are we talking about the circumstances of the case itself -- that she made bad decisions the night of the crash but was just trying to get a bunch of intoxicated teens home.

As one of the Fox Valley's premier defense attorneys, Colton has been around the block. But she's never argued extraordinary circumstances for aggravated DUI or reckless homicide since the January 2006 law took effect.

While others have tried and failed, a few have been successful. In April, Kane County Judge Allen Anderson sentenced 59-year-old Earl Wilkison of Elburn to four years' probation and one year in a work release program after he was convicted of reckless homicide and aggravated DUI in the 2008 death of 24-year-old Ryan Campbell of Burlington.

Prosecutors wanted to put Wilkison in prison for at least five years for the Campton Township crash. But the judge ruled there were "extraordinary circumstances," citing Wilkison's clean record, health issues and his contributions to the community.

Also benefitting from the statute was Onofrio J. Lorusso, a 19-year-old Wayne man facing 14 years in prison. Instead, in May, he got three years' probation and 180 days in the Kane County jail for his role in the 2009 crash that killed Cameron Godee, his classmate at St. Charles East High School.

Judge Timothy Sheldon cited the young man's remorse, as well as the speeches he's given about drinking and driving as the reason for the leniency.

But this same judge wasn't so magnanimous in August, when Thomas Ofenloch Jr.'s attorney argued for extraordinary circumstances after his client was found guilty of reckless homicide for his role in a high-speed crash in Sugar Grove that killed his two friends. This time, Sheldon, pointing to Ofenloch's failure to seek help for a history of substance abuse, threw the offender in prison for 10 years.

Last year, a firefighter who tried unsuccessfully for extraordinary circumstances after pleading guilty to aggravated DUI in Sangamon County was also unsuccessful in an appellate court when he argued people shouldn't have to guess at the meaning of the law.

But Kane County State's Attorney John Barsanti describes it as a "good law," even though he's arguing against it more these days as defense attorneys successfully use it. It's "purposely vague," he added, "to give judges more discretion" with reckless homicide convictions, some of which are simply "more egregious than others."

Whether this 2006 statute strengthen or dilute our DUI laws remains a question. Whatever its intent, Judge Hull has a tough call before him in the Vasquez sentencing this week as the families on both sides of the courtroom face him.

And Colton knows she has her work cut out for her, too, in this highly emotional case.

"Does it make a difference five kids died versus one?" she asks. "There's a reason I'm not a judge ... I don't know what he will do."